S v Oxfordshire County Council
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Year | 1993 |
| Date | 1993 |
| Court | Family Division |
CONNELL, J
Care proceedings – allocation – proceedings brought in magistrates' court – whether proceedings should have been transferred to county court with a view to transfer to High Court.
Care proceedings – reasons – failure by magistrates' court to give reasons for order made – whether decision could stand.
Guardian ad litem – court not bound to follow recommendation – reasons to state why different course pursued.
Reasons – care proceedings – local authority seeking supervision order – guardian ad litem recommending care order – magistrates' reasons to state why court proposed to make a supervision order.
Reasons – guardian ad litem – recommendation – court not bound to follow recommendation – reasons must state why recommendation not followed.
The child, a boy, was born in May 1991. In October 1991 the local authority learned that the child had suffered injuries. On examination the child was found to have small bruises on his face. The explanation given by the parents was regarded as consistent with the injuries. On 8 January 1992 the child was admitted to hospital with a fractured femur. The parents were unable to explain how the injury might have happened. A consultant orthopaedic surgeon stated that it was an extremely unusual injury and that the combination of an unusual fracture, together with the facial bruising in October 1991, was very suggestive of non-accidental injury.
On 21 January 1992 the local authority decided at a case conference that the child should be discharged from hospital to the care of the parents. Further, the local authority decided that they would not bring care proceedings. The child was discharged from hospital to the care of the parents on 29 January. On 31 January the child's general practitioner attempted to refer the child to a child psychiatrist who refused to accept the referral. As a result, the local authority reconvened the case conference. On 14 February at the request of social services, the child was placed with the paternal grandparents, and on 20 February the local authority commenced care proceedings in a magistrates' court. On 25 February an interim care order was made, and further interim care orders were made until the substantive hearing in May 1992. During the period from February to May 1992 the parents had frequent contact with the child. This included contact at a day centre where it was observed that the parents had a good relationship with the child and handled him well.
At the substantive hearing the magistrates found that the criteria set out in s 31(2) of the Children Act 1989 had been met and went on to consider what, if any, order should be made. The local authority sought a supervision order. However, the guardian ad litem stated that the appropriate order was a care order as no proper explanation had ever been forthcoming from the parents for the serious injury he had suffered and, therefore, there was a substantial risk implicit in the concept of returning the child to live with the parents. The magistrates decided to make a supervision order.
The guardian ad litem appealed.
By para (5) of r 21 of the Family Proceedings Courts (Children Act 1989) Rules 1991, before the court made an order or refused an application the justices' clerk was required to record in writing, in consultation with the magistrates, the reasons for the court's decision and any findings of fact; and by para (6) of r 21 when making an order or refusing an application the court, or one of the magistrates, was required to state any findings of fact and the reasons for its decision.
Held – allowing the appeal: (1) In their written reasons the magistrates had explained why they found the criteria set out in s 31(2) of the 1989 Act to be met. However, in those reasons, the magistrates had failed to deal with the issue between the local authority and the guardian ad litem as to the appropriate order. First, the magistrates had failed to deal with the important issue that the child had suffered a serious and still unexplained non-accidental injury whilst in the care of his parents. Secondly, they did not refer to the arguments advanced by the guardian ad litem on behalf of the child. Thirdly, they did not state why they decided in favour of the case of the local authority to make a supervision order as opposed to that of the guardian ad litem to make a care order. Fourthly, the reasons did not attempt to assess or evaluate the risk involved in returning the child to the day-to-day care of the parents. In the total absence of any reasons being given for preferring a supervision order to a care order, and a failure to assess the risk to which the child would be subjected if returned to live with the parents, the decision, or at least the process by which it was arrived at was fatally flawed. Consequently, the decision could not stand.
(2) Although a court was entitled to take a different course from that recommended by a guardian ad litem, it was very important that the reasons why that different course was being pursued should be clearly expressed.
(3) In this case the proceedings were exceptionally important and difficult, in particular because of conflicting evidence about the risks involved in the child's physical well-being. Consequently, the proceedings should have been transferred to a county court and that court should have considered a transfer to the High Court.
The matter would be sent for rehearing by a Judge of the High Court.
Statutory provisions referred to:Children Act 1989, ss 1, 25, 31(2) and 94.
Children (Allocation of Proceedings) Order 1991, Articles 7 and 12.
Family Proceedings Courts (Children Act 1989) Rules 1991, r 21(5) and (6).
Cases referred to:B (Minors) (Custody), Re[1992] 2 FCR 631.
Devon County Council v C [1985] FLR 1159.
G v G (Minors: Custody Appeal) [1985] 1 WLR 647; [1985] 2 All ER 225.
JR v Oxfordshire County Council[1992] 2 FCR 310.
Stephenson v Stephenson [1985] FLR 1140.
AppealAppeal from Didcot family proceedings court.
Jonathan Baker for the guardian ad litem
Anne Spratling for the local authority.
Alicia Collinson for the parents.
Frances Judd for the paternal grandparents.
MR JUSTICE CONNELL.This is an appeal under s 94 of the Children Act 1989 by a guardian ad litem from the decision of the family proceedings court in Didcot given on 14 May 1992, whereby that court made a supervision order in respect of the child, the subject of the proceedings. That order was made by that court after a two-day hearing and the child with whom the court was concerned is a boy whom I shall call "D", born on 4 May 1991 and, accordingly, now some 14 months old. My judgment is given in open court, as is appropriate in an appeal of this nature, but I direct that no publication of any part of the proceedings shall take place that might lead to the identification of the little boy with whom these proceedings are concerned.
As I say, the appellant in the proceedings is the guardian ad litem who acted in the proceedings on behalf of the little boy. The other parties to the proceedings are the mother and the father of the little boy, the paternal grandparents, and the Oxfordshire County Council.
A chronology has been helpfully placed before me by counsel, to which I shall refer, to enable me to describe the background circumstances leading to this case. The mother and father of D had known one another for some years when on 3 June 1990 they went to live at the father's parents' home in Didcot. During that period of cohabitation the mother became pregnant. In January 1991 the mother and father moved to bed and breakfast accommodation in Wallingford and whilst they were living there on 4 May 1991 the little boy was born. In July 1991 there was an...
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